Leff, Arthur Allen. "Economic Analysis of Law: Some Realism about Nominalism." Virginia Law Review 60 (1974), 451.

With the publication of Richard A. Posner's Economic Analysis of Law, that field of learning known as "Law and Economics" has reached a stage of extended explicitness that requires and permits extended and explicit comment. But one of the dangers of reviewing a work "mainly designed for use either as a textbook in a law school course... Or as supplementary reading for law students..., and getting down to the job later than one ought, is that one perforce reads it straight through, as if it were a real book. Having done that one cannot help being nagged throughout by what may be the literary critic's most pernicious and unavoidable naggerie: Where have I seen this before?... I was more than half way through the book before it came to me: as a matter of literary genre (though most likely not as a matter of literary influence) the closest analogue to Economic Analysis of Law is the picaresque novel.

Think of the great ones, Tom Jones, for instance, or Huckleberry Finn, or Don Quixote. In each case the eponymous hero sets out into a world of complexity and brings to bear on successive segments of it the power of his own particular personal vision. The world presents itself as a series of problems; to each problem that vision acts as a form of solution; and the problem having been dispatched, our hero passes on to the next adventure. The particular interactions are essentially invariant because the central vision is single. No matter what comes up or comes by, Tom's sensual vigor, Huck's cynical innocence, or the Don's aggressive romanticism is brought into play, forever to transform the picture of the pictured world (without, by the way, except in extremis, transforming the hero).

Richard Posner's hero is also eponymous. He is Economic Analysis. In the book we watch him ride out into the world of law, encountering one after another almost all of the ambiguous villains of legal thought, from the fire-spewing choo-choo dragon to the multi-headed ogre who imprisons fair Efficiency in his castle keep for stupid and selfish reasons. In each case Economic (I suppose we can be so familiar) brings to bear his single-minded sell and the Evil Ones (who like most in the literature are in reality mere chimerae of some mad or wrong-headed magician) dissolve, one after another.

One should not knock the genre. To hold the mind-set constant while the world is played in manageable chunks before its searching single light is a powerful analytic idea, the literary equivalent of dropping a hundred metals successively into the same acid to see what happens. The analytic move, just as a strategy, has its uses, no matter which mind-set is chosen, be it ethics or psychology or economics or even law. In each case, of course, the approach has its limitations, some of which arise from the single-approach strategy itself, and some of which arise from the particular mode of apprehension chosen to be single-minded with. I expect, in this review, to deal with some of those costs and benefits.

But the peculiarly relentless tone of this book moves me also to another inquiry: what pressures in contemporary legal scholarship might be responsible for the appearance, now, of four hundred pages of tunnel vision and, assuming one could answer that, why this particular tunnel? For Posner's book is, after all, just a flatly reified symbol of a currently important trend. It is a matter of common knowledge that economic analysis of the type Posner's book exemplifies is growing ever more popular among legal scholars .... [E]ven people like me, with no formal background in and little natural taste or aptitude for economic analysis, seem to be drawn to reading it, learning it and, in primitive fashion, even writing it. What is our problem?

In order to approach the question at all, I shall have to begin with a very brief examination of the difficulties in which those who want to continue to talk about law presently find themselves. Then, having roughly outlined the hidden darkness from which the lawyer's current lust for economic illumination springs (for when you see a drunk flinch, you will never understand his action unless you know about the pink viper whose fangs he is trying to avoid), I shall go on to a more detailed discussion of certain aspects of Posner's approach. First, therefore, we will have to take rather a bleak architectural tour of a modern intellectual box. Only then will we be able to comment usefully upon the most recently designed and most elegantly constructed of the presently purported doors.

The Way We Live Today

Let us start with a couple of vicious intellectual parodies. Once upon a time there was Formalism. The law itself was a deductive system, with unquestionable premises leading to ineluctable conclusions. It was, potentially at least, all consistent and pervasive. Oh, individual judges messed up, and even individual professors, and their misperceptions and mispronouncements needed rationalization, connection, and correction. But that was the proper job of one of the giants we had in the earth in those days. The job of legal commentators, and a fortiori of treatise writers, was to find the consistent thread in the inconsistent statements of others and pull it all together along the seam of what was implicit in "the logic of the system." When you found enough threads and pulled them just hard enough, you made a very neat bag--say, Beale's Conflict of Laws.

Then, out of the hills, came the Realists. What their messianic message was has never been totally clear. But it is generally accepted that, at least in comparison to the picture of their predecessors which they drew for themselves, they were much more interested in the way law actually functioned in society. There were men in law, and the law created by men had an effect on other men in society. The critical questions were henceforward no longer to be those of systematic consistency, but of existential reality. You could no longer criticize law in terms of logical operations, but only in terms of operational logic.

Now such a move, while liberating, was also ultimately terrifying. For if you were interested in a society, and with law as an operative variable within that society, you would have to find out something about that subject matter and those operations. You would, it seems, have to become an empiricist. That, as we shall see, is no picnic when the facts you are searching out are social facts. But there is a worse worry yet. If you no longer are allowed to believe in a deductive system, if criticism is no longer solely logical, you no longer can avoid the question of premises. Premises, in terms of logic, are just that: those things you don't talk about. But if you are under an obligation to talk about non-foreordained conclusions, you must start to talk about non-given starting points. Any (mostly implicit) assumptions that one's premises in some mysterious manner are at least congruent with the commands of the universe would (and did) come under increasing pressure. If "good" were seen solely in terms of effects, the only good premises were those that came up with good effects. Thus, by dropping formalism we (quite rightly) fell into the responsibility of good and evil.

But not, alas, the knowledge thereof. While all this was going on, most likely conditioning it in fact, the knowledge of good and evil, as an intellectual subject, was being systematically and effectively destroyed. The historical fen through which ethical wanderings led was abolished in the early years of this century (not for the first time, but very clearly this time); normative thought crawled out of the swamp and died in the desert. There arose a great number of schools of ethics--axiological, materialistic, evolutionary, intuitionist, situational, existentialist, and so on--but they all suffered the same fate: either they were seen to be ultimately premised on some intuition (buttressed or not by nosecounts of those seemingly having the same intuitions), or they were even more arbitrary than that, based solely on some "for the sake of argument" premises. I will put the current situation as sharply and nastily as possible: there is today no way of "proving" that napalming babies is bad except by asserting it (in a louder and louder voice), or by defining it as so, early in one's game, and then later slipping it through, in a whisper, as a conclusion. * * *

Let us say you found yourself facing a universe normatively empty and empirically overflowing. What I suppose you would want most to do, if you wanted to talk at all, would be to find some grid you could place over this buzzing data to generate a language which would at the same time provide a critical terminology ("X is bad because... ") and something in terms of which the criticism could be made (that is, something to follow the "because... '). Now "because it is" is a bit naked as a satisfactory explanation. * * *

But what if you said X wasn't "good" or anything like that, that is, wasn't normative at all? What if you described X solely in empirical terms, for instance, X is what people, as a matter of fact, want? That way you can get to the well-known neo-Panglossian position of classic utilitarianism: while all is not for the best (because the best is what people want and they don't have it yet), the best is still nothing more than what they do want. Admittedly, this is just an example of one of the now-classic normative copouts--essentially, "good" becomes just a function of nosecounting--but it does have the advantage of providing a ready-made critical vocabulary: because there is now a clear area between what people want and what they have, while you can no longer say that doing anything is bad, you can say of some things that they are being done badly.

Of course, you still haven't solved all your intellectual (or practical) problems. The world may no longer be normatively empty (you've filled it by definitional fiat), but it is still full of all sorts of puzzling things. You have, that is, solved only one difficult problem. True, you need no longer ask if people ought to desire other things than they do desire, for those desires are the measure of all things. But what do people (some or all and is that relevant?) desire? If you don't know that, then you can't criticize what they presently have, or what they are right now doing, with reference to their failure to reach that desire Thus it is possible that all you have ended up doing is substituting for the arbitrariness of ethics the impossibilities of epistemology.

Now all of the above is but by way of introduction to Posner's solution to these scarifying problems. He does indeed solve the normative "oughtness" prob lems by the neo-Panglossian move: good is defined as that which is in fact desired. But then he makes a very pretty move, one that renders his work and work like it, so initially attractive to the dwellers of the box: in place of what one might have expected (and feared)--a complex regimen for an empirical investigation of human wants and values--he puts a single-element touchstone, so narrow a view of the critical empirical question as to be, essentially, a definition. "What people want" is presented in such a way that while it is in form empirical, it is almost wholly non-falsifiable by anything so crude as fact.

To follow this initially attractive development in legal criticism (for purposes both of admiration and scorn), one will have to master the critical early moves. The first and most basic is "the assumption that man is a rational maximizer of his ends in life .... "As Posner points out, this assumption "is no stronger than that most people in most affairs of life are guided by what they conceive to be their self-interest and that they choose means reasonably (not perfectly) designed to promote it." In connection with this assumption, several "fundamental economic concepts" emerge. "The first is that of the inverse relation between price charged and quantity demanded.' The second is the economist's definition of cost, "the price that the resources consumed in making (and selling) the seller's product would command in their next best use--the alternative price."

The third basic concept, which is also derived from reflection on how self-interested people react to a change in their surroundings, is the tendency of resources to gravitate toward their highest valued uses if exchange is permitted .... By a process of voluntary exchange, resources are shifted to those uses in which the value to the consumer, as measured by the consumer's willingness to pay, is highest. When resources are being used where their value is greatest, we may say that they are being employed efficiently.

Now it must immediately be noted, and never forgotten that these basic propositions are really not empirical propositions at all. They are all generated by "reflection" on an "assumption" about choice under scarcity and rational maximization. While Posner states that "there is abundant evidence that theories derived from those assumptions have considerable power in predicting how people in fact behave," he cites none. And it is in fact unnecessary to cite any, for the propositions are not empirically falsifiable at all.

Efficiency is a technical term: it means exploiting economic resources in such a way that human satisfaction as measured by aggregate consumer willingness to pay, for goods and services is maximized. Value too is defined by willingness to pay.is

In other words, since people are rationally self-interested, what they do shows what they value, and their willingness to pay for what they value is proof of their rational self-interest. Nothing merely empirical could get in the way of such a structure because it is definitional. That is why the assumptions can predict how people behave: in these terms there is no other way they can behave. If, for instance, a society dentist raises his prices and thereby increases his gross volume of business, it is no violation of the principle of inverse relation between price and quantity. It only proves that the buyers now perceive that they are buying something else which they now value more highly, "society dentistry," say, rather than "mere" dentistry. And if circularity isn't sufficient, the weak version of the rational maximization formula ("most people in most affairs of life . . . choose means reasonably (not perfectly) designed .... ') has the effect of chewing up and spitting out any discordant empirical data anyway. Any puzzling observation fed into that kind of definition will always be able to find a "most," or a "reasonably," way out.

Thus what people do is good, and its goodness can be determined by looking at what it is they do. In place of the more arbitrary normative "goods" of Formalism, and in place of the more complicated empirical "goods" of Realism, stands the simple definitionally circular "value" of Posner's book. If human desire itself becomes normative (in the sense that it cannot be criticized), and if human desire is made definitionally identical with certain human acts, then those human acts are also beyond criticism in normative or efficiency terms; everyone is doing as best he can exactly what he set out to do which, by definition, is "good" for him. In those terms, it is not at all surprising that economic analyses have "considerable power in predicting how people in fact behave."

I shall argue that lovely as all of this is, it is still unsatisfactory as anything approaching an adequate picture of human activity, even as expressed in that sub-category of living loosely called "law." But one can still admire the intelligence with which it is tried, and the genuine, though limited, illuminations the effort provides. More than that, one can now understand the forces that shaped the attempt. All of us are unable to tell (or at least to tell about) the difference between right and wrong. All of us want to go on talking. If we could find a way to slip in our normative in the form of descriptives, within a discipline offering narrow and apparently usable epistemological categories, we would all be pathetically grateful for such a new and more respectable formalism in legal analysis. We would leap to embrace it. Since that is the promise of economic analysis of law, to an increasing (and not wholly delusive or pernicious) extent, many of us are leaping.

To summarize, the move to economic analysis in law schools seems an attempt to get over, or at least get by, the complexity thrust upon us by the Realists. There was nonsense in Beale, but, ah, there was a feeling of elegance and power too. It was lovely to be able to say things like, "law... is not a mere collection of arbitrary rules, but a body of scientific principle." It was marvelous not to be embarrassed to say that "Law... in great part.., consists in a homogeneous, scientific and all embracing body of principle"... Now we have a book in which it is apparently plausible to declare, "it may be possible to deduce the basic formal characteristics of law itself from economic theory".., and then do it in a two page chapter. What bliss.

We are, I think, beginning to see in the speedy spread of economic analysis of law the development of a new basic academic theory of law. Since its basic intellectual technique is the substitution of definitions for both normative and empirical propositions, I would call it American Legal Nominalism. * * *

"Inefficiency" As A Critique

[L]et us now return to that most key passage in the book:

Efficiency is a technical term: it means exploiting economic resources in such a way that human satisfaction as measured by aggregate consumer willingness to pay for goods and services is maximized. Value too is defined by willingness to pay?

Since the assumption is that "man is a rational maximizer of his ends in life," (which, as you recall, means nothing stronger than that most people in most affairs of life are guided by what they conceive to be their self-interest and that they choose means reasonably (not perfectly) designed to promote it), you can tell what people want, and how much they want it, by seeing what they buy, and how much they pay for it. By and large, therefore, whatever people might say, you can get a fair idea of what is really to their taste by seeing what they actually do. * * *

But if one thoroughly accepts the idea that the results people actually achieve for themselves are the ones that, among the available alternatives, they wanted to achieve, then one trembles on the edge of a worrisome paradox. For it is then also possible to state matters this way: Whatever people achieve for themselves, they perceive it as the best they can do. If what they want can be determined only by seeing what they "buy," then what they "buy" must (by definition) be what they wanted (again, given the available choices). One cannot say that though A achieved state X, he "really" wanted to achieve state Y (and certainly not that he ought to have wanted to achieve state Z), because the only test of the "rightness" of his choice, for him, given his circumstances, is what he did.

Given this initial position about the autonomy of people's aims and their qualified rationality in reaching them, one is struck by the picture of American society presented by Posner. For it seems to be one which regulates its affairs in rather a bizarre fashion: it has created one grand system--the market, and those market-supportive aspects of law (notably "common," judge-made law)--which is almost flawless in achieving human happiness; it has created another--the political process, and the rest of "the law" (roughly legislation and administration)-which is apparently almost wholly pernicious of those aims. An anthropologist coming upon such a society would be fascinated. It would seem to him like one of those cultures which, existing in a country of plenty, having developed mechanisms to adjust all intracultural disputes in peace and harmony, lacking any important enemies, nevertheless comes up with some set of practices, a religion say, simultaneously so barbaric and all pervasive as to poison almost every moment of what would otherwise appear to hold potential for the purest existential joy. If he were a bad anthropologist, he would cluck and depart. If he were a real anthropologist, I suspect he would instead stay and wonder what it was about the culture that he was missing. That is, he would ponder why they wanted that religion, what was in it for them, what it looked like and felt like to be inside the culture. And he would be especially careful not to stand outside and scoff if, like Posner, he too leaned to the proposition that "most people in most affairs of life are guided by what they conceive to be their self-interest and.., choose means reasonably (not perfectly) designed to promote it."

The point is this: at least as an initial position, anything that happens in a culture has as much likelihood of being "desired" as anything else. One needs an extracultural standing place, or some evidence of "real" intention other than that which is the product of observing actual practice, in order to criticize any facet of the culture, in normative or efficiency terms. For nothing can be considered inefficiently achieved until one discovers what the aim of the activity was.

This caution is, I think, especially applicable to certain of Posner's critiques, and helps in more general terms to illuminate the limitations of his method. Consider, for instance, his chapter on crime control. He begins:

The economic content of legal theory is nowhere clearer than in the rationale of criminal punishment. The usual justification offered by legal theory for why the state punishes criminal violators is that it is necessary in order to deter people from committing crimes.

Posner then goes on to tie this asserted aim (much more explicitly, by the way, than anywhere else in the book) to its underlying philosophical pillar, a rather crude version (even for Bentham) of Benthamite utilitarianism.

Bentham's utilitarianism, in its aspect as a positive theory of human behavior, is another name for economic theory. Pleasure is value, and pain cost. People... can be deterred from criminal activity by a punishment system that makes the cost of criminal activity greater than the value of that activity to them.

But there is a serious problem here. Posner assumes (apparently because it is the "usual justification offered by legal theory," that is, because that's what people say) that the purpose of criminal punishment is to deter criminal behavior, and on that basis criticizes certain aspects of current criminal law and procedure as inefficient, even silly. But what if deterring criminal behavior is not the aim, or even one of the principal aims, of the criminal law as practiced in the society? If that were so, then it might be argued that there was no inefficiency at all.

Consider, for instance, Posner's discussion of incarceration as a punishment. It is, he says, "a more costly remedy to society than a fine is." He points not only to the costs of running the prison system, and the loss of the prisoner's productivity, but to the damaging effects on the prisoner himself Imprisonment tends to decrease the likelihood that the criminal will "go straight" and earn honest dollars, the failure to earn which is, as Posner puts it, "one of the opportunity costs of crime." Thus it costs money to jail a man, and costs more when the jailing confirms him in a life of crime. Society has spent money (incurred costs) in order to incur further costs (more crime).

But what if society's interest in deterrence is, in fact, not very strong? What if it is the incarceration itself society likes and wants to "buy"? What if it doesn't want deterrence, or even rehabilitation, but the satisfaction of some other interest, revenge say, or what (if one were being judgmental) one might call sadism? After all, a link between prison and increased crime has been suspected by quite a number of people for quite a long time. There has even been some evidence of a link between the nastiness of the prison and the rate of increased crime. Nonetheless there has been firm opposition, at least from large segments of the public, to any decrease in imprisoning or amelioration of prison life. It is altogether possible that while the society does see increased crime as a cost, it considers it one well worth incurring in order to experience the otherwise socially unobtainable joy of inflicting pain. * * *

It is not important, however, which of these widely diverging social cost-benefit analyses--mine or Posner's--is more accurate. The more important issue is this: Posner can find a social activity "inefficient" only by assuming that what society does, and what it wants to do, are different. But how can he know that? Certainly he can't say "because people say they want something different" for as he apparently knows as well as any man alive, what counts is not what people say is of value to them, but what they buy and how much they pay. And he certainly cannot argue that they ought to want something different, not in the face of his own careful strictures against any normativity. * * *

I could go on multiplying instances with respect to particular analyses of particular legal problems. But what I find most interesting is the possibility that my thesis--that you can't know something is ill-done unless you assume an aim other than the one achieved--might also be applicable to one of Posner's most central, important, and apparently beloved points, the comparative inefficiency of, and "market failure" in, what one might call "the political market."

Posner writes:

There is abundant evidence that legislative regulation of the economy frequently, perhaps typically, brings about less efficient results than the market-common law system of resource allocation. The crucial question is whether this failure is accidental and easily remediable, or perhaps inherent in the nature of political decision making. The latter view is gaining support. The essential problem seems to be that the generalized consumer interest in efficient markets is systematically underrepresented in legislative decision making.

Let us assume that legislative regulation does, in fact, bring about less "efficient'' results (in Posner's technical meaning of the term) than the market as buttressed by common-law adjudication. That is no big-hearted concession on my part; the evidence, only a small part of which is cited by a comparatively restrained Posner, is exceedingly persuasive. Let us also assume that generalized consumer interest in efficient markets is systematically underrepresented in the political process; Posner's arguments are exceedingly summary on the point, but he is backed up by some strikingly intelligent people who have argued the same point with exceeding (perhaps excessive) pertinacity and thoroughness. The obvious question remains, however: So what? Remember, the issue is not, for every consumer/citizen what he gets out of "the market" or what he gets out of "politics," but what he gets out of the society which is the product of both of these grand systems together. To say of a system that it is defective because, taken by itself, it fails to maximize or optimize something good is somewhat like arguing that steak is a defective food because it has virtually no carbohydrates. It would be defective (that is, conducive to early death) if that were all one ate. But in the context of general nutrition it might be seen as an important part of the process of sustaining life.

Thus it is at least plausible that the "weaknesses" in the political system, such as its frustration of allocational efficiency, are really complementary to, or even corrective of, "weaknesses" in the economic system, such as its tendency to distribute power in proportion to wealth, or even in proportion to wealth-producing talents. Giving everyone one vote may help people keep from themselves their natural inferiority, a truth which, if it surfaced, would substantially affect their tempers and their utility schedules. Politics may, that is, be a method of cementing social solidarity through even distributive injustice, and the purpose of the political process may indeed be anti-efficient and distributively absurd. But once again, "we" may be getting, overall, what we want.

One can, of course, go too far with this sort of argument, and I may have done so already. It is not going to help matters much if I attempt to substitute for Posner's extremely careful version of what I take to be the essentialist fallacy ("the real explanation of this social practice is .... ") my own less careful avatar of the holistic fallacy ("this practice can only be explained in the context of all of the dynamics of the entire society"). If the first is overly arid, the second is a swamp. Not only can one say very interesting things about subparts of societies, but Posner actually does so over and over. But a society, and its creation of human satisfactions and frustrations, is more complicated than Posner's economic model makes it appear. It is possible, I suppose, that the entire political structure of advanced technological societies is just a mistake, and as presently articulated it has almost no wholesome purpose. But that seems to me bloody unlikely. For if "the market" is a creation of human choice, so is the government. * * *

Smuggling Normatives: How To Win For Friends And Influential People

I have saved for last the question that is really most basic, for me, and I think for Posner. For all of his claims to non-normativity, it is obvious that there is a least one value qua value that directs and informs Posner's whole analysis. God (and history) knows it's one that does him credit: individual human freedom. One could, I suppose, treat Posner's making his whole structure balance on a definition of value in terms of individual human desire as hypothetical or accidental, but that would be silly. As normatives go freedom is a good good, and there's no reason for anyone to be embarrassed by its espousal. For Posner, freedom--individual freedom--is a merit good, and why not; it's certainly no worse than, say, equality.

But having said that human freedom is the subterranean value upon which Economic Analysis of Law stands, and having praised that foundation, I cannot bring myself to stop. I know I should. Normative premises are just that; they don't get any more proved by being talked about. But I am just not up to resisting the modern moralist's temptation: even if I cannot say anything sensible about the choice of an institutionist good, I shall nonetheless run on a while about the logical consistency and intellectual elegance of its deployment.

All right, let us consider, one last time, Posner's key definitional paragraph:

Despite the use of terms like 'value' and 'efficiency,' economics cannot tell us how society should be managed. Efficiency is a technical term: it means exploiting economic resources in such a way that human satisfaction as measured by aggregate consumer willingness to pay for goods and services is maximized. Value too is defined by willingness to pay and is in turn a function of the existing distribution of income and wealth in the society. Were income and wealth distributed in a different pattern, the pattern of demands might also be different and efficiency would require a different deployment of our economic resources. The economist cannot tell us whether the existing distribution of income and wealth is just, although he may be able to tell us something about the costs of altering it as well as about the distributive consequences of various policies. Nor can he tell us whether, assuming the existing distribution is just, consumer satisfaction should be the dominant value of society. The economist's competence in a discussion of the legal system is limited to predicting the effect of legal rules and arrangements on value and efficiency, in their strict technical senses, and on the existing distribution of income and wealth.

In such a system whatever is, is. If you do not "buy" something, you are unwilling to do so. There is no place for the word or concept "unable." Thus, in this system, there is nothing which is coerced. For instance, let us say that a starving man approaches a loaf of bread held by an armed baker. Another potential buyer is there. The baker institutes an auction; he wants cash only (having great doubts about the starveling's health to be interested in granting credit). The poor man gropes in his pockets and comes up with a dollar. The other bidder immediately takes out $1.01 and makes off with the bread. Now under Posner's definitional system we must say that the "value" of the bread was no more than a dollar to the poor man because he was "unwilling" to pay more than that. An observer not bound within that particular definitional structure might find it somehow more illuminating to characterize the poor man's failure as being the result of being unable to pay more than a dollar. But one cannot, consistent with Posner's system, say any such thing. One's actual power is irrelevant. * * *

If, however, one thinks intellectual consistency is worth talking about, it is worth pointing out that a similar argument can, perhaps must, be made if one applies Posner's definitional structure to political decisions. There are two ways to put the case. One is that if the poor man is forever to be deemed "unwilling" to buy, then the individual (rich or not) must be deemed "unwilling" to change or leave the political system, and so we will not hear his complaints about being coerced. That is tempting, but maybe it would be more instructive to say no more than that in both cases, he is "unwilling" to pay the price charged. The poor man could grab the bread (and risk being shot); the political man, unsatisfied with his lot, could revolt and seek to form his own polity (and risk getting squashed). In each case, all that stands in his way is a serious worry about his likelihood of success, given the inequality of power between him and the others.

What this all means is that Posner has not played fair with the question of power, or inequalities thereof. He has made a very common move: after something of value has been distributed he has defined taking as illicit and keeping (except when paid) as in tune with the expressed wishes of the universe. It is not as if force is never to be used; Posner assumes, indeed commands, its use against theft. One of the purposes of the state is to detect the terrible inefficiencies of nonconsensual transfers by having the government really smash those who persist in such behavior. But by and large the government is to have no role in even annoying those who choose to exclude others from what they already have. Keepers keepers, so to speak. * * *

In brief, there seems to be some normative content in Posner's neo-Panglossianism after all. Only some kinds of inequality are to be accepted as an unquestionable grundnorm upon which to base efficiency analyses. The transfers that come about against a background of wealth inequality are fine; any that come about against a background of inequality in strength, or the power to organize and apply strength, are unjustifiable. Some inequalities are apparently more equal than others--and all without reference to any apparent normative criterion at all.

Conclusion

There is none, and that's the point. We all know that all value is not a sole function of willingness to pay, and that it's a grievous mistake to use a tone which implies (while the words deny) that it is. Man may be the measure of all things, but he is not beyond measurement himself. I don't know how one talks about it, but napalming babies is bad, and so is letting them or even their culpable parents starve, freeze, or merely suffer plain miserable discomfort while other people, more "valuable" than they are or not, freely choose snowmobiles and whipped cream. Whatever is wrong with all that, it is only partly statistical. People are neither above reproach, nor are they ever just "sunk costs." And "the law" has always known it; that is the source of its tension and complexity. If economic efficiency is part of the common law (and it is), so is fiat justitia, ruat coelum.

Thus, though one can graph (non-interpersonally comparable) marginal utilities for money which are the very picture of geometric nymphomania, we still preserve our right to say to those whose personalities generate such curves, "you swine," or "When did you first notice this anal compulsion overwhelming you?" or even "Beware the masses." And indeed "the law," even "the common law," has on impulses like those often said, even against efficiency--"Sorry buddy, you lose."

I admit that it is not easy these days to be a moralist manqué, when what it is that one lacks is any rational and coherent way to express one's intuitions. That's why it is, today, so very hard to be a thinking lawyer. But I will tell you this: substituting definitions for both facts and values is not notably likely to fill the echoing void. Much as I admire the many genuine insights of American Legal Nominalism, I think we shall have to continue wrestling with a universe filled with too many things about which we understand too little and then evaluate them against standards we don't even have. That doesn't mean that any of us--especially bright, talented and sensitive people like Richard Posner--should stop what they are doing and gaze silently into the buzz. What he is doing and has done (including this book) enriches us all. But (to get back to where we started) he (and all of us) should keep in mind what I think is the most lovely moment in Don Quixote. When asked by a mocking Duke if he actually believes in the real existence of his lady Dulcinea, the Don replies:

This is not one of those cases where you can prove a thing conclusively. I have not begotten or given birth to my lady, although I contemplate her as she needs must be? * * *

One can understand the impulse, and be touched by the attempt, but the world is never as it needs must be. If it ever so seems, it is not the thing illuminated one is seeing, but the light.